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Volume 3, Issue 6 — June 1973


The Substantive Right to Environmental Quality Under the National Environmental Policy Act

by Richard S. Arnold

The proliferating field of environmental law presents a timely example of the always fascinating interplay of law and fact, of science and jurisprudence. It also tests the vitality of many traditional notions of the functions of courts in a republic, the relative distribution of power among appointed judges, the people's elected representatives in Congress, and administrative officials who in most instances are neither elected nor directly chosen by anyone who has been elected. In particular, what is the role of the courts in protecting "the environment," that nebulous concept that seems at times to be all things to all men, and that bids fair to encompass the whole world? Do judges appointed for life and deliberately removed from popular correction have any role to play in this respect, or are the hard social and economic questions to be addressed solely by the Congress and its delegates? An approach to answering these questions should illuminate not only the conjunction of law and science, but also the usefulness of non-elected officials in helping a democratic society choose and reach its goals.1 In this article I shall venture to suggest some answers, using as a framework the varying attitudes of the courts towards the enforcement of our nation's most widely applicable expression of environmental policy, the National Environmental Policy Act,2 which became law on January 1, 1970. The statute declares policy in broad terms and imposes procedural requirements on federal agencies in rather specific terms. It is my purpose in this Article to determine whether courts, having once ensured that the procedures commanded by Congress have been scrupulously observed, have any further duty to perform. In other words, does NEPA create any substantive rights enforceable in the courts?

The inquiry must begin with the words of the statute. As already noted, NEPA basically does two things: it declares national policy, and it imposes certain enumerated procedures.3 The statute is not a model of brevity, but the pertinent sections must be set out in extenso. Section 2, 42 U.S.C. §4321, reads:

Wilderness Preservation II: Bringing the Convention Into Court

by Thomas G.P. Guilbert

The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere1 was introduced in an article in the May issue of ELR,2 in the context of an analysis of the recent decision in Izaak Walton League v. St. Clair.3 The author suggested that the Convention provided independent grounds for support of Judge Neville's opinion enjoining mining activities in the Boundary Waters Canoe Area of the National Wilderness Preservation System. Even as that article was being written, another judge in Minnesota, in another opinion that could have invoked the Convention, was citing St. Clair's broad language in granting an injunction against certain logging activity in the same Boundary Waters Canoe Area.4

If a judge has already made up his mind to decide a case in favor of wilderness values, it is a relatively simple task for him to invoke the Convention's edict that strict wilderness reserves must be maintained inviolate. He can simply cite the Supremacy Clause of the United States Constitution,5 which makes treaties the supreme law of the land, binding on all courts of the nation. The environmental lawyer, on the other hand, may find obstacles blocking the path to his introduction to the judge of his nondiscretionary duty to give effect to the Convention. The environmentalist must prove that the area satisfies all of the Convention's criteria for strict wilderness reserves; he must show either that the area is listed as a strict wilderness reserve with the Organization of American States or that its non-listing is of no legal effect; he must establish standing to invoke the Convention in his litigation; and he must prove that the use of the wilderness that he is trying to prevent is not "consistent with the purposes for which the area was established." These impediments to invocation of the Convention are the subject of this Article.


EPA Allows Fish and Wildlife Coordination Act Provisions to Apply to Discharge Permits Issued Under the Federal Water Pollution Control Act

After some initial hesitancy, EPA has agreed that the provisions of the Fish and Wildlife Coordination Act1 do apply to pollutant discharge permits issued by EPA under §402 of the Federal Water Pollution Control Act (FWPCA). The Fish and Wildlife Coordination Act requires any agency issuing a permit to consult with the Fish and Wildlife Service of the Department of the Interior regarding the conservation of wildlife resources. Consultation with the National Oceanic and Atmospheric Administration (NOAA) in the Department of Commerce was added by Executive Order in 1970.

The agreement was formalized recently when EPA promulgated rules for the National Pollutant Discharge Elimination System under the new Water Act.2 The regulations require EPA's Regional Administrators to meet with appropriate officials of the Interior and Commerce Departments to determine which applications for discharge permits will automatically be reviewed by fish and wildlife personnel. Interior and Commerce will have 30 days to evaluate the effects of the proposed discharge on wildlife resources. An agency may be allowed more time if the Regional Administrator finds that granting the request is in the public interest. Interior and Commerce play an advisory role; they can suggest conditions upon the permit "necessary to avoid substantial impairment of the fish, shellfish, or wildlife resources," but the Regional Administrator is not obligated to accept them.

Congress Considers New Environmental Protection Act

The Environmental Protection Act of 1973, introduced by Sen. Philip Hart and now being considered by Congress, proposes procedural and substantive changes in federal law to aid environmentalists. The full text is set out at the end of this Comment. The broad purpose of the Act, which is modeled to some extent on Michigan's Environmental Protection Act of 1970, is to give each citizen a right to "the protection and enhancement of environmental quality" and an adequate equitable remedy "to protect environmental quality from impairment and degradation."

Under the Act, standing to sue is accorded those who "speak knowingly for the environmental values asserted." In addition, the opportunity for judicial review of the substance of federal agency decisions concerning the environment is expanded in two ways. First, the courts need not defer to agency findings when they are contradicted by the "preponderance of the evidence." Second, even when an agency's action is within the range of legitimate discretionary choices the court may (a) independently review the substantive balancing of environmental and economic costs and the expected benefits, or (b) require that an alternative course of action be taken that is less damaging to the environment.

Injunction Sought Against Operation of 20 Nuclear Power Plants

Ralph Nader and Friends of the Earth have filed a complaint with the District Court for the District of Columbia charging the Atomic Energy Commission with abuse of discretion for licensing 20 nuclear power plants in reliance upon the Interim Acceptance Criteria for Emergency Core Cooling Systems (ECCSs) that were issued by the Commission on June 29, 1971.1 Complainants contend that the Commission's action violates its duty under the Atomic Energy Act of 1954 not to issue licenses for nuclear power plant operation unless there has been a showing that licensees "will provide adequate protection to the health and safety of the public"2 in the plant's operation. A significant danger associated with nuclear power plants is the accidental release to the environment of the liquid coolant surrounding the radioactive fuel. Such an "uncontrolled loss of coolant accident" (LOCA) could conceivably release enough radioactivity to kill and injure hundreds of thousands of people and do billions of dollars of property damage. Before nuclear power plant licenses can be issued by the AEC, the complainants argue, an emergency core cooling system must be developed that is capable of controlling LOCAs. The AEC has demonstrated its zeal for the development of nuclear energy, according to complainants, by promulgating Interim Acceptance Criteria for emergency core cooling systems on the basis of presumptions and beliefs based on inadequate, incomplete, and unverified information. The Commission, complainants urge, has ignored the Advisory Committee on Reactor Safeguards and the operating heads of the Emergency Core Cooling System Research Program, all of whom maintain that inadequate criteria exist upon which to assure that emergency core cooling systems can control LOCAs. Complainants contend, therefore, that operation of plants licensed on the basis of the Interim Acceptance Criteria for ECCS is inimical to the public safety and must be enjoined.

Article in This Issue: "Substantive Rights Under NEPA," by Richard S. Arnold

NEPA watchers who were asked in late 1972 what they thought the chances were that the courts would review agency project decisions on their merits under NEPA's substantive provisions usually gave a pessimistic answer. By February, 1973, however, three (and possibly four) circuit courts appeared to have resolved the issue in favor of such review. In his article, The Substantive Right to Environmental Quality Under the National Environmental Policy Act (3 ELR 50028). Richard Arnold analyzes the cases that brought about this important recent development in NEPA's generally remarkable legal history. As an attorney who has brought several NEPA suits for the Environmental Defense Fund, including the two in which the key Eighth Circuit decisions on substantive review were delivered (the Cossatot River and Cache River cases), Mr. Arnold is especially well-equipped to write an important expansion of judicial review under NEPA.

The Takings Doctrine In the Wisconsin Supreme Court: Just v. Marinette County

A 1972 decision of the Supreme Court of Wisconsin is rapidly becoming a landmark case in the law of land use regulation. In Just v. Marinette County, the court ruled that governmental regulation restricting the use of land to "indigenous and natural" uses is not a taking that requires compensation. Regulations that preserve presently enjoyed public rights are an exercise of the police power, said the court, while those that secure new benefits are a use of eminent domain.

The case arose as a challenge to the enforcement of Marinette county's Shoreland Zoning Ordinance.2 The ordinance was designed to satisfy state requirements for shoreland regulation. Detailed standards pursuant to the statute were promulgated by the state department of natural resources, including a model ordinance, that was adopted by Marinette County.

EPA Sets Policy on the Protection of Wetlands

The Environmental Protection Agency recently established a policy to preserve the nation's wetlands and to protect wetland ecosystems from destruction through wastewater or nonpoint source discharges. It need hardly be pointed out that wetlands, which include marshes, swamps, bogs, and other low-lying areas, have tremendous environmental value. They provide habitats for important fur-bearing mammals and many species of fish and waterfowl, moderate extremes in water flow, aid in water purification, maintain and recharge groundwater, and offer unique recreational opportunities. Hence, it is appropriate that EPA adopt a policy especially favoring their protection.

An interesting aspect of EPA's statement of policy is its explicit reliance upon the National Environmental Policy Act as authority for refusing, as a matter of principle, to grant funds for treatment facilities to be constructed on wetlands, except when no other alternative is "feasible." Instances of creative reliance by federal agencies on the expanded authority conferred on them by NEPA have been hard to find. Yet, NEPA does confer such authority, as the new draft CEQ Guidelines1 and Zabel v. Tabb2 indicate.

Are All Advertisements for Automobiles and Gasoline Subject to the Fairness Doctrine?

In Los Angeles, a city perhaps more afflicted with air pollution than any other in the United States, citizens' groups are seeking a broader application of the Federal Communication Commissions' fairness doctrine that would brand all automobile advertising as a practice that in itself raises a controversial issue of public importance.If the groups are successful, Los Angeles television stations will have to provide air time for pointing out the environmental consequences of purchasing automobiles, as urged in commercials. The fairness doctrine, the requirements of which are generally well-known,1 may therefore afford a means of alerting the public to the dangers of continual reliance on private automobiles as the principal means of transportation.

The complainants, the Sierra Club and the National Council of Jewish Women, contend that KTTV of Los Angeles is obligated under the fairness doctrine to make presentations that describe the health hazards produced by automobile pollution and urge reduced automobile use and development and use of alternative modes of transportation.2 The complainants rely on Friends of the Earth v. FCC,3 which held that advertisements for large-engined automobiles and leaded gasoline present one side of a controversial issue of public importance and require broadcasters to give substantial treatment of significant opposing viewpoints. The court in Friends explained that "when there is undisputed evidence . . . that the hazards implicit in air pollution are enlarged and aggravated by such products," application of the doctrine to advertisements for those products is "inescapable." Because the health hazards caused by automobile pollution in Los Angeles are even more severe than those in New York, Friends seems clearly applicable to Los Angeles broadcasters. Complainants contend, however, that Friends' application to Los Angeles broadcasters cannot be limited to advertisements for large-engine automobiles and leaded gasoline, but must extend to all automobile and gasoline commercials. The controversial issue in the Los Angeles area, complainants say, is not whether to use automobiles that pollute to a greater or lesser extent as was the case in Friends, but whether automobile use as a whole should be reduced. In support of this proposition, complainants point out that the EPA Administrator himself has actually proposed gasoline rationing for the Los Angeles area. This proposal and the debate that followed it highlight the fact that a reduction in automobile use is urgently needed, and is supported by prominent groups and public officials in the community. EPA reports indicate that the standards for clean and healthful air established under the Clean Air Act for the Los Angeles area cannot be achieved by limiting road access to small-engine cars completely equipped with emission control devices. Therefore, the only viable way to achieve the important national policy of clean air in the Los Angeles area is by dramatic reduction of automobile use.

EPA Publishes Rules for National Pollutant Discharge Elimination System

EPA recently issued final regulations implementing the discharge permit requirements of the Federal Water Pollution Control Act.1 The permit system is the basic enforcement mechanism for achieving the effluent and water quality standards established by the Act. The discharge of any pollutant into navigable waters requires a permit, either from the federal government or an EPA-approved state program. So far, California is the only state to have had its program approved.

The scope of the Act is set out in two important definitions contained in the Regulations. Part 125.1 (o) defines "navigable waters" and encompasses any water that Congress would have the power to regulate under the Commerce Clause, a much broader assertion of federal power than would be possible were the test "navigability in fact." The term "pollutant" is defined in Part 125.1 (x) as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water." Most vessel discharges, dredge and fill material, deposits into publicly owned treatment works, and uncontrolled storm runoffs are specifically excluded from the permit requirement.